Selling Prescription Drugs Illegally

Federal law makes it illegal for any person who does not have a license to write prescriptions to sell or give a prescription drug to another person

By , Attorney · Cardozo School of Law
Updated February 28, 2023

Both federal and state laws govern the sale of prescription drugs. When someone sells them illegally, they usually commit a felony, and the consequences can be harsh.

Selling Prescription Drugs

In the U.S., prescription drugs can be legally provided by pharmacists, doctors, and medical professionals who are licensed to prescribe and/or dispense them. Anyone without such a license can't legally give or sell prescription medications to others.

Indeed, federal and state laws make it a crime to sell or give away prescribed controlled substances without a license. It's also a crime to write a prescription without a license.

And even licensed healthcare professionals can't knowingly sell or give prescription drugs to someone who doesn't have a legitimate need or a valid prescription for them.

(U.S.C. 822(b); see 21 U.S.C. 823(f); U.S.C. 841; 21 C.F.R. 1306.04(a).)

What Is an "Illegal Sale" of Prescription Drugs?

Selling doesn't necessarily mean a cash transaction; it can include giving or exchanging prescription drugs, as well as an offer or agreement to sell or exchange them.

A prescription drug can be sold illegally in a number of ways. For instance, a person who has a valid prescription can be convicted of illegally selling drugs if he sells or gives his drugs to someone else.

And a doctor or health care provider can be guilty of a crime by writing prescriptions that aren't medically necessary (which includes prescriptions for more doses than the person actually needs). Some physicians have done this by writing multiple prescriptions for one person using several different (and often fake) names. Similarly, a pharmacist who knowingly fills an invalid prescription can also be charged with an illegal sale.

What Does the Prosecutor Have to Prove?

Defendants can be convicted of selling prescription drugs illegally if a prosecutor proves simply that a defendant knowingly sold or simply gave (or agreed to sell or give) a prescription drug to someone who lacked a valid prescription.

With defendants who are health care professionals or pharmacists, a prosecutor would have to prove that the defendant intentionally wrote or filled bogus prescriptions.

Defenses to Selling Prescription Drugs

When charged with illegally selling prescription drugs, defendants can sometimes argue that they had no intent to sell the drugs, but instead possessed them for personal use.

In the case of defendants who are health care professionals or pharmacists, they might argue that they had medically valid reasons for writing prescriptions, or had no reason to suspect that they were filling an invalid prescription.

Penalties for Illegally Selling Prescription Drugs

The penalties for the illegal sale of prescription drugs vary, depending on where the case was prosecuted. (Federal charges carry the same penalties no matter where in the country the prosecution occurs, but each state has its own sentencing provisions).

A conviction for an illegal sale of prescription drugs can carry rather heavy penalties. Although possessing an illegal drug is often a misdemeanor, selling them is commonly a felony. Here are a few of the penalties that can result from a conviction for selling prescription drugs:

  • Incarceration. Felony convictions can and often do result in prison time—anywhere from one year to several years depending on the facts of the offense (such as the amount of drug involved) and the characteristics of the defendant (for example, are they a first-time offender or a repeat player?)
  • Fines. Judges usually impose criminal fines in addition to (and sometimes instead of) time behind bars. The fines vary significantly depending on the facts of the case, and tend to be highest in federal cases.
  • Probation. People convicted of less serious drug sale offenses (maybe as part of a plea deal) might be able to get probation instead of (or in addition to) incarceration, depending on how the judge views the case. A probation term usually lasts a minimum of 12 months, but is often anywhere from two to five years.
  • Loss of Professional Licenses. Healthcare providers and pharmacists convicted of illegally selling prescription drugs face not only criminal penalties but also the loss of their licenses.

Additional Information

For more information regarding the sale of drugs, check out the links below.

Consult With a Lawyer

Being charged with illegally selling prescription drugs is serious. Anyone charged with or being investigated for this offense should speak with a local, experienced criminal defense attorney. A knowledgeable lawyer should be able to assess your case for possible defenses and weaknesses, and advise you whether to go to trial or try to get a plea deal. When the defendant is a licensed healthcare professional, an experienced attorney might be able to negotiate a deal that either allows the person to keep their license or lets them give up their license to avoid time behind bars.

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